ALJDEC decisions subject to certification as final
18A-1606089-NUR · State Board of Nursing · 2018-06-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF DENIAL OF APPLICATION FOR REISSUANCE OF NURSING ASSISTANT CERTIFICATION/ LICENSURE NUMBER CNA1000011754, BY:
SHU’JUAN TEBEC JENKINS
APPLICANT.
No. 18A-1606089-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 27, 2018
APPEARANCES: Shu’Juan Tebec Jenkins on her own behalf; Elizabeth Campbell, Esq. for the Board of Nursing
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.
On February 26, 2018, the Board issued a “Notice of Public Hearing on Denial of Licensure” setting the above-captioned matter for hearing on April 2, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.
The Notice of Public Hearing incorporated by reference the Board’s “Order of Denial No. 1606089,” dated January 25, 2018, in which the Board denied Applicant Shu’Juan Tebec Jenkins’s June 23, 2016 application for reissuance of a nursing assistant license. The issue for hearing is Ms. Jenkins’s appeal of that denial.
The Notice of Hearing shows that the Board denied Ms. Jenkins’s application because she had committed acts of unprofessional conduct and because she failed to establish that she meets the requirements for reissuance as required by Ariz. Admin. Code section R4-19-815.
The matter was continued and the hearing was conducted on April 27, 2018.
Ms. Jenkins appeared and testified on her own behalf. The Board presented the testimony of its investigator Kirk Olson.
Ms. Jenkins held certified nursing certificate number CNA1000011754 issued by the Board. Ms. Jenkins’s CNA certificate was revoked through an Order dated January 26, 2011 (the “Revocation Order”).
The Revocation Order shows that:
In September 2008, Ms. Jenkins entered a Consent Agreement showing that she committed patient abuse.
On or about May 17, 2010, Ms. Jenkins pleaded guilty to, and was convicted of, child abuse, a class six felony, and domestic violence.
Ms. Jenkins did not report to the Board this felony conviction within ten days of the conviction.
On or about January 26, 2016, Ms. Jenkins submitted to Ventana Winds Retirement Home an employment application for a position as a caregiver in which she answered “no” to a question about whether she had ever pleaded guilty to, or been convicted of, a crime. Ms. Jenkins did not disclose her felony conviction for child abuse.
Ms. Jenkins was hired by Ventana Winds, but was fired on May 24, 2016 after she had been found sleeping on duty on May 21, 2016. In an interview with Mr. Olson, Ms. Jenkins acknowledged that she had fallen asleep on the job at Ventana Winds.
On or about April 5, 2016, Ms. Jenkins was charged with shoplifting, a misdemeanor. On May 9, 2016, Ms. Jenkins pleaded guilty to, and was convicted of, shoplifting.
On June 23, 2016, Ms. Jenkins submitted to the Board her application for reissuance of a nursing assistant certificate.
With her application, Ms. Jenkins submitted documentation showing that her 2010 felony conviction had been designated as a misdemeanor on February 22, 2016, and certificates of achievement for completing the 48-hour Maricopa County Adult Probation Domestic Violence Peace Program on November 24, 2010 and for completing New Direction L.L.C.’s Parenting Skills Program on March 23, 2011.
On July 18, 2017, the Ms. Jenkins’s child abuse conviction was set aside.
Ms. Jenkins acknowledged pleading guilty to the felony, but noted that she has done what the courts asked of her (anger management and parenting classes) and that she was released from probation early.
Ms. Jenkins acknowledged that she had pleaded guilty to shoplifting, but added that the case was closed once she paid her fines. Ms. Jenkins had entered into evidence an Order showing that the judgment of guilt in the shoplifting matter had been set aside on January 26, 2017.
Ms. Jenkins explained that she is a single mother who had recently returned to the workforce and was working two shifts and juggling family responsibilities when she fell asleep at Ventana Winds.
Ms. Jenkins had admitted into evidence a letter from her sister, Jasmine Jenkins, who is the mother of the child-abuse victim. Jasmine Jenkins’s letter shows her opinion that the child-abuse incident was an honest mistake, that Ms. Jenkins had learned from it, and that she considered Ms. Jenkins to be a loving and caring human being.
CONCLUSIONS OF LAW
Ms. Jenkins bears the burden of persuasion to show that she meets the requirements for her application to be granted. Ariz. Rev. Stat. § 41-1092.07(G)(1).
The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
The fact that a criminal conviction has been set aside does not render that conviction a nullity and the Board may consider Ms. Jenkins’s convictions in its licensing determination. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 395 P.3d 709 (App. 2017).
Ariz. Rev. Stat. section 32-1663(A) provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.”
Ms. Jenkins pleaded guilty to, and was convicted of, shoplifting, which is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d)(any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public). See Ariz. Admin. Code § R4-19-814(15).
In her application for employment at Ventana Winds, Ms. Jenkins falsely reported that she had not been convicted of, or pleaded guilty to, a crime, which is unprofessional conduct under Ariz. Rev. Stat. section 32-1601(26)(d). See Ariz. Admin. Code § R4-19-814(28).
Ms. Jenkins was required to “submit documentation showing that the basis for denial, revocation or voluntary surrender has been removed and that the issuance or re-issuance of licensure or CMA certification will no longer constitute a threat to the public health or safety.” Ariz. Admin. Code § R4-19-815(1). Because Ms. Jenkins committed acts of unprofessional conduct in January 2016 (the false application) and April 2016 (shoplifting) she has not met this requirement.
The Board has authority to deny Ms. Jenkins’s application. Ariz. Rev. Stat. § 32-1663(A).
Considering the facts and circumstances of this matter, it is recommended that the Board’s decision to deny Ms. Jenkins’s application be affirmed and her appeal dismissed.
RECOMMENDED ORDER
IT IS ORDERED that Shu’Juan Tebec Jenkins’s application for reissuance of nursing assistant certification is denied.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.
Done this day, June 15, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing